44 Kan. 87 | Kan. | 1890
Opinion by
This was an action commenced in the court below November 21, 1889, to enjoin the city of Topeka, James Ramsey, Byron Roberts as treasurer of Shawnee county, and the Capital City Vitrified Brick and Paving Company, from paving Van Burén street between Third and Eighth streets, under a contract entered into between said city of Topeka and James Ramsey, dated August 1, 1889. Answers were filed by the several defendants, setting forth, first, a general denial; second, the regularity of the successive and necessary steps showing the necessity, propriety and legality of the contract between the city of Topeka and James Ramsey for the paving of said street; and third, the statute of limitations. To which answers the plaintiffs replied; and on the 9th day of December, 1889, the case came on for trial, resulting on the 12th day of December in a judgment for the plaintiffs; to which each of the defendants duly excepted. December 13th the several defendants filed their motions for a new trial, which motions were overruled.
Section 1 of chapter 101, Laws of 1887, among other things provides that—
“No suit to set aside said special assessments, or to enjoin the making of the same, shall be brought, nor any defense to the validity thereof be allowed, after the expiration of thirty days from the time the amount due on each lot or piece of ground liable for snch assessment is ascertained'.”
The language of this statute is such as to leave little or no room for construction. Its provisions are plain, direct, and positive, and seem sufficiently broad to cut off all defenses not asserted within the period of time named therein. It says no suit shall be brought nor any defense allowed after the ex
However, the defendants, plaintiffs below, insist that at the time the contract was entered into between the city and Ramsey, two of the councilmen representing the city had a pecuniary interest in said contract, which rendered it null and void; that said fraud was concealed from and unknown to the plaintiffs below until October 29, 1889, when Ramsey assigned said contract to the brick and paving company; and that because of said concealment of the fraud the statute of limitations did not commence to run until said 29th of October, a time within thirty days before the suit was commenced, and that therefore the suit is not barred by said statute. We hardly think this position is tenable. The legislature has provided a special statute of limitations for these cases, and any fair construction of its provisions is against this position. It would have been easy for the legislature to so word the statute as to cut off all defenses except for fraud, and to say that the statute should run as against fraud from the time of its discovery. This is done in the general statute of limitations; but there is nothing of the kind in this statute. And as the legislature was providing a special statute of limitations, different from the general statute, we must presume that it intended it to have the effect it said it should have, and cut off all defenses of whatever kind or character. This may be a harsh rule, but that fact does not furnish a reason why we should not construe the statute as it is, though it may furnish a reason why the legislature should modify it.
In this case it was claimed that the amount assessed against the several lots liable for the improvement sought to be made was not properly ascertained; that it was ascertained by the city clerk instead of by the council. The record shows that on the 6th of September, 1889, the city council passed an
By the Court: It is so ordered.